Summary: Mr D complained about the Council’s management of a commercial estate in which he rents a business unit. He said it delayed addressing his concerns about overgrown vegetation, fire safety and breaches of the terms of lease by other unit holders. As a result, he said he experienced distress and uncertainty. We found the Council at fault for its delays in clearing the vegetation and the conflicting information in gave Mr D about risk assessments. This caused him some distress and uncertainty. He also had time and trouble to get the Council to address his concerns. However, we found no fault in the Council’s enforcement process. It reached decisions it was entitled to make, and we cannot therefore criticise the merits of such decisions.

The complaint

1. The complainant, whom I shall refer to as Mr D, rents a unit in a commercial estate from the Council. He said he told the Council about his concerns within the estate, but it failed to:
• remove dumped rubbish, overgrown vegetation and falling trees;
• address health & safety and fire risk issues;
• enforce breaches of the lease agreement on other tenants; and
• properly respond to his concerns.
2. As a result, Mr D said he experienced uncertainty and distress.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

6. As part of my investigation, I have:
• considered Mr D’s complaints to the Council and its responses;
• discussed the complaint with Mr D;
• considered the information Mr D and the Council provided; and
• given Mr D and the Council the opportunity to comment on a draft version of this decision and considered the comments I received.

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What I found

Relevant Law and Policy

The Regulatory Reform (Fire Safety) Order 2005 (the Order)

7. The Order sets out who the responsible person is for fire safety. It says:
• in a work place the employer is responsible for the part of the workplace that is under his control; and
• in relation to premises not under an employer’s control, the responsible person is the person who has control of the premises such as the owner.
8. The Order says to ensure the safety of employees and visitor, the responsible person must:
• take general fire precautions;
• do a suitable and sufficient assessment of the risk of fire; and
• ensure routes to emergency exits from the premises and the exits themselves are kept clear at all times.

The Council’s Enforcement Policy

The Policy says it is likely to investigate continuous or serious allegations of breach of Policy, but it may not always investigate minor breaches. If a breach of Policy is found, it will use its discretion to decide whether to:

• take no action,
• take informal action; or
• start formal action against the individual or business.

The Lease Agreement

9. The Council’s lease agreement sets out the terms it and the unit holder are expected to adhere to. This includes parking arrangement, usage of skips and general behaviour within the estate.
10. It also sets out the Council is responsible for the maintenance of the common grounds within the estate. However, each unit holder is responsible for their respective units, which includes fire safety measures and compliance with Health & Safety Regulations.

What happened

11. Mr D rents a unit in a commercial estate (the Estate) from the Council. He runs his business from the unit and employs staff.
12. The Council has a lease with Mr D and each tenant who rents a unit from it. It assigns Officer’s to monitor and manage the Estate.
13. Mr D said he asked the Council to remove dumped rubbish, overgrown vegetation, and dangerous trees in April 2019. He said the Council’s Officer attended the site and walked around with him to assess the works it needed to do.
14. Mr D said he continued to ask the Council to do the works it had agreed to, but no works were carried out. He also reported issues with another unit holder who parked cars in breach of the lease.
15. In autumn 2020, Mr D again told the Council about his concerns within the Estate which he found was causing a risk to safety. He asked the Council for its risk assessments of the Estate and said:
• it had failed to do the agreed works to remove rubbish, cut vegetation and remove the dangerous trees;
• cars were parked in breach of the terms of the lease, in particular by one unit holder. This included parking in the turning bays and skips on the Estate;
• he and his staff had been subjected to anti-social behaviour as a result of the Council’s failure to enforce the terms of the lease;
• double yellow lines had not been painted as required; and
• signage for the units were incorrect and needed to be updated.
16. The Council and Mr D had several communications over the following three months and its Officers attended the estate to assess Mr D’s concerns.
17. In the Council’s responses to Mr D, it said it:
• acknowledged the works had taken longer than anyone wanted, but the delays had been caused by a change to its procurement process due to spending restrictions during COVID-19, and other demands on its team.
• had scheduled works to clear the rubbish, vegetation and trees for late 2020;
• had not marked up the double yellow lines due to an oversight, but it will arrange for this when its contractor was in the area. It warned this may take some time due to other priorities;
• had observed cars being parked in the turning bay, but found business carried on as usual. However, it had reminded tenants to only park in their designated bays on the Estate and it would do so again;
• would resolve issues with continuous breaches of the lease. However, this was at the discretion of its Estate Managers. It also said such matters were between the Council and the individual unit holders;
• apologised for the delay in amending the Estate’s signage and said it would do so when another unit was let;
• said each unit holder is responsible for fire safety within their units. However, would provide Mr D with a copy of its risk assessments for the Estate. Later, it told him it may not have such assessments as there are no common buildings. However, it would find out and respond to Mr D;
• was not required to have a Health & Safety assessment as it did not have staff of the estate.
18. In late 2020, the Council’s contractor removed the rubbish, vegetation and did works to some trees.

Mr D’s complaint to the Council

19. Mr D was not satisfied with the Council’s handling of his concerns since April 2019. He acknowledged it had done some works to resolve his concerns, but he complained it had:
• taken 18 months to remove the vegetation and dumped rubbish, which caused him concerns about his and his staff safety on the Estate;
• failed to enforce breaches of the lease by other unit holders, and in particular the tenant of one unit. This included parking in the turning bays and in other unit’s designated areas, use of skips, and anti-social behaviour;
• wrongly decided to grant a licence for additional parking spaces to the unit holder who parked in breach of the lease agreement;
• failed to mark out the double yellow lines as required;
• failed to change the incorrect signage for his unit for over a year; and
• not provided him with risk assessments for the estate as he requested, and it had given conflicting information about whether it had such assessments. He also said there were insufficient emergency lighting and signage at fire exits and no meeting points for all the units.

The Council’s complaint response

20. The Council apologised for the time it took to amend the signage for his unit. It also agreed it had taken too long to resolve Mr D’s concerns about the dumped rubbish, vegetation, and the trees.
21. However, the Council did not agree it was at fault on the other matters. It explained:
• it had managed enforcement within the Estate appropriately by visiting the site and considering the concerns reported to it. It had decided each breach on a case-by-case basis, but any enforcement action was at the discretion of its Estate Manager. This meant not all breaches would be enforced and would be dealt with between the Council and the unit holder;
• it had decided to grant a temporary licence to a unit holder for parking in an empty unit’s designated parking spaces. However, this was short term as the unit was soon to be let;
• its Officer’s had missed the marking out of double yellow lines, but delays were due to its contractor failing to complete the works to the Council’s satisfaction on two occasions. It said it would do the works itself, but this may take some time due other priorities;
• it had marked out the turning bays, and Mr D’s concerns about the usage of skips had been resolved;
• arguments and inappropriate behaviour would be dealt with directly with individual unit holders. Such discussions would not be shared with other unit holders unless this impacted on their lease;
• it had written to all the unit holders to remind them about their obligations under the lease;
• it had checked with its Building Control and the Fire Authority, and it was not required to do a fire risk assessment as there were no internal structures within the common parts of the estate. However, it accepted its previous responses to Mr D caused some ambiguity;
• it was not required to do a Health & Safety risk assessment because it does not have staff on site.
22. Following Mr D’s complaint, the Council has also arranged for a contractor to do monthly maintenance of the Estate.
23. Mr D said he acknowledges the works the Council has done has now improved the Estate. However, he remains unhappy about how the Council handled his concerns and the delays it caused. He is also still concerned about fire safety within the estate and said some breaches of the lease is still occurring.

Analysis

24. Mr D’s complaint relates to delays which is more than 12 months before he brought his concerns to the Ombudsman’s attention. His complaint is therefore late. However, I am satisfied it is appropriate to exercise my discretion and consider his complaint from April 2019. This is because the evidence shows he continued to bring his concerns to the Council’s attention during this period and relied on the Council’s promises to address his concerns.

Council’s actions before Autumn 2020

25. The Council agreed it took too long for it to remove the dumbed rubbish, vegetation, and dangerous trees. However, it did not find this caused Mr D an injustice.
26. I agree with the Council’s view that it was at fault for the delay it caused from April 2019. I found this did cause Mr D an injustice. This is because he had a reasonable expectation the works would be completed as the Council promised. While there is no evidence the Council’s fault caused any injury to Mr D or anyone else, I am satisfied the delays caused him some distress and uncertainty about fire and general safety within the estate.

Council’s actions after Autumn 2020

27. When Mr D again brought his concerns to the Council’s attention, it took the Council a further three months to clear the dumbed rubbish, vegetation and dangerous trees. It also updated the estate signage and marked out the turning bays.
28. The Council acknowledged it had taken too long to resolve these concerns. It explained this was partly due to COVID-19 and a change in its procedures to have the costs for works approved. It also told Mr D it would mark out the double yellow lines, but this would be when it fit with its other priorities.
29. I acknowledge the impact COVID-19 had on the Council. I am satisfied this meant it took longer than normal for its works to be approved and completed. I have not found fault by the Council’s for the additional delays caused. This is because the delays were primarily caused by circumstances outside its control. However, I recognise the delay would not have occurred, had the Council completed the works in 2019 as it said it would.
30. Also, there were delays in marking out the double yellow lines. The Council explained this was because its contractor failed to do the works to the standard it expected. This is fault by the Council. It agreed the work had not previously been done due to an oversight by its officers. It continued to be responsible for the marking out of the lines, regardless of whether it chose to use a contractor to do so.
31. However, I have not found fault by the Council for any delays after it said it would do the works itself. This is because it considered the impact of the missing double yellow lines and decided to do the works in line with its other priorities. This is a decision it was entitled to make; I cannot therefore criticise its decision.
32. I found the absence of the lines did not cause Mr D an injustice. However, I am satisfied the Council’s failure to mark out the lines, when it said it would, caused him some limited distress.

Council’s enforcement of the lease

33. Mr D disagrees with the Council’s handling of his reported breaches of the lease by other unit holders. Based on the evidence available, I accept these were:
• Cars parked on turning bays, outside designated areas and in bays designated to an empty unit;
• Some cars may have been untaxed or unroadworthy;
• Skips were placed and used contrary to the lease; and
• There were arguments between unit holders, which may have been anti-social behaviour and the Police was involved.
34. The Council considered Mr D’s reported breaches of the terms of the lease. In doing so, it spoke with Mr D and other unit holders, it observed parking within the estate and the turning bays. However, it did not find the breaches to be severe enough for it to take formal action. So, it decided to write to all the unit holders to remind them of their obligations under the lease. I have not found fault in the Council’s enforcement process. This is because it followed its Policy and reached decisions it was entitled to make. I cannot therefore criticise the merits of its decisions.
35. I understand Mr D felt it was wrong for the Council to grant a unit holder a temporary licence to park in an empty unit’s designated parking bays. However, the Council is entitled to manage its estates as it sees fit. As I have seen no evidence Mr D, or other unit holders, had applied for this, there is no question of fault for me to consider.

Complaint’s handling

36. The Council considered and responded to Mr D’s complaints as set out in its Complaints Policy. However, as part of his complaint Mr D asked the Council for a copy of its Fire Risk Assessments and Health & Safety Assessment of the Estate.
37. The Council’s Officer initially told Mr D it would provide its assessments to him. It then told him it did not have any and it would check if it was required to. In its final response to Mr D, it explained it was not required to have any assessments. It apologised for the confusion it caused.
38. I found the Council’s communication with Mr D caused him some confusion. This was fault. However, I am satisfied its apology was enough to remedy the distress the confusion caused him.
39. Also, I understand Mr D still believe the Council is required to do a fire risk assessment for the estate. However, the Fire Safety Order says it is not required to do any assessment as there are no common premises under its control within the Estate. It was therefore not at fault for failing to do an assessment.
40. However, the Council had a duty not to block or caused a fire escape route to become obstructed. In paragraph 27, I found the Council at fault for its delay in clearing the dumped rubbish and vegetation. I am therefore also satisfied the Council failed to act on Mr D’s fire safety concerns and remove the obstructions caused by the vegetation. While this did not cause injury to Mr D, nor anyone else, I am satisfied he experienced some distress due to the uncertainty about fire safety within the estate. This continued until the Council completed the works.

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Agreed action

41. To remedy the injustice the Council caused to Mr D, the Council should, within one month of the final decision:
1. Apologise in writing and pay Mr D £150 to acknowledge the distress and uncertainty he experienced as a result of the Council’s faults.
2. Pay Mr D an additional £100 for the time and trouble he had to continue to bring his concerns to the Council’s attention.
42. Within three months of the final decision the Council should also:
1.  
2.  
3. remind its staff, who are responsible for managing its commercial estates, to ensure the Council acts on fire safety concerns without delay. In particular for areas which is under its control.

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Final decision

43. I found fault which caused an injustice. The Council has agreed with my recommendations, I have therefore completed my investigation.

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Investigator's decision on behalf of the Ombudsman